Migration, Home Affairs and Citizenship
Rue de La Roi 200
1049 1049 Brussels
London/Budapest, February 24, 2017
RE: Draft amendments to laws pertaining to asylum and migration in Hungary
Dear Mr Avramopoul0s,
The Hungarian Helsinki Committee and Human Rights Watch are writing to you regarding our serious concerns with draft changes to Hungary’s asylum and migration laws that are at odds with European Union, human rights and refugee law.
The package of draft amendments to five acts relating to asylum and migration in Hungary was submitted to parliament for consideration on February 14 by the government. The Bill no T/13976, “On the amendment of certain acts related to increasing the strictness of procedures carried out in the areas of border management,” is slated for discussion during the spring session of the parliament and expected to enter into effect in late spring 2017.
The draft amendments are at odds with Hungary’s obligations under European Union laws regulating asylum, migration and border control and therefore warrant the Commission’s attention. The Bill in its current form allows for the automatic detention of asylum seekers in transit zones and summary removal to the Serbian border of asylum seekers and migrants apprehended anywhere on the territory of Hungary, without allowing them access to the Hungarian asylum procedure.
These provisions would apply during the current “state of crisis” caused by mass immigration” and any such “state of crisis” in future. The government on February 14 extended the current state of mass migration crisis until September 7, 2017. The current draft laws include a new vague element outlining the criteria for announcing such a state of crisis, in which the problematic legal provisions may be applied. Our organizations are particularly concerned about the proposed changes below:
Summary removals from all of Hungary to Serbian Border
Article 7 of the Bill would authorize Hungarian law enforcement to “escort” all third-country nationals detected on Hungarian territory who lack lawful status and wish to seek asylum to the Serbian side of the razor wire fence without providing access to the asylum procedure, a violation of the right to asylum under the EU Charter of Fundamental Rights.
This is an extension to the July 2016 amendments that legalized summary removals to the Serbian border of asylum seekers and migrants apprehended after irregular entry within 8 kilometers of the border.
Human Rights Watch and the Hungarian Helsinki Committee have independently documented how such “escorts” are conducted. Our research shows that in over a hundred cases asylum seekers and migrants have been subjected to brute violence during pushbacks by Hungarian border officials, including being pummeled with fists, pepper sprayed, struck with batons, kicked, bitten by dogs and robbed of belongings including clothes, mobile phones and money. Similar concerns were raised by the UN Refugee Agency (UNHCR) in July 2016.
Arbitrary Admission Rates in Transit Zones
According to Article 7 of the Bill, the only means of seeking protection in Hungary will be to seek admission to a transit zone established on, or in the vicinity of, the Hungarian-Serbian border.
In practice, this severely limits access to asylum. The government on January 23 set the current arbitrary rate of admission to 5 people per workday per zone, with families getting priority. The transit zones only operate during work days. At this current rate, families are forced to wait for several months in order to be admitted into the zones to submit their asylum claims, whereas single males are forced to wait much longer. The low admission rate places an undue burden on Serbia. Serbia currently accommodates over 7,700 asylum seekers and migrants, but according to the Serbian government, it only has capacity to accommodate 6,000. As a result, over 1,000 asylum seekers and migrants, including children, sleep rough in inhuman conditions in abandoned warehouses in Belgrade, abandoned brick factories in Subotica and in makeshift tents in front of the Hungarian transit zones at the border with Hungary.
Automatic Detention of Asylum Seekers in Transit Zones
According to articles 4, 7 and 9 of the Bill all asylum seekers, including vulnerable persons (families with underage children, elderly, people with disabilities, unaccompanied children above 14 years, single women, women heads of households, torture victims) who were previously exempted will be automatically detained in container-style housing in the transit zones at the Hungarian-Serbian border. According to article 7, the only exception is made for unaccompanied children under 14 years who will be put in temporary accommodation and appointed a guardian. In practice unaccompanied children who seek asylum in Hungary to date are placed in child welfare facilities.
The Prime Minister’s office on February 14 stated that the proposed legal changes mean that all asylum seekers, except unaccompanied children under 14 years, currently accommodated in open reception facilities or detained in asylum or immigration detention facilities may be transferred to the transit zones without specifying from what date such transfers can be made.
Government officials stated that placing asylum seekers in the transit zones is effectively detention (although asylum seekers can be released from detention if they choose to return to Serbia and forfeit their claim), however no detention orders will be issued and therefore no legal remedy is available to challenge the lawfulness of detention. According to Article 12 of the Bill, the current maximum stay of 28 days in the transit zones will be abolished, which could permit indefinite detention of asylum seekers, even though the asylum procedure in the transit zones is a truncated “border” procedure with a short, quick timeframe, designed to deal only with admissibility issues and not the full merits of a protection claim.
Automatic blanket detention of asylum seekers without a judicial order or an effective judicial remedy is in violation of the 2013/33 EU Recast Directive on standards of reception, the right to liberty under the European Convention on Human Rights and international refugee law standards. Detention of asylum seekers should be an exceptional measure and decided by a competent authority on a case by case basis. The detention of children, including unaccompanied children between the ages of 14 and 18, further violates human rights standards including article 11 of the EU Recast Receptions Directive, article 24 of the EU Charter on Fundamental rights, articles 3 and 37(b) on the Convention of the Rights of the Child.
Appeals Shortened, Judicial Review Compromised
According to article 7 of the Bill, the deadline to seek judicial review against inadmissibility decisions and rejections of asylum applications will be shortened to three days from the previous seven, limiting asylum seekers’ abilities to effectively challenge a decision in court. Article 6 states that judicial clerks, i.e. not fully qualified judges, may also issue judicial review decisions in the asylum procedure.
Article 3 of The Bill also places a financial burden on asylum seekers, obliging them to cover the costs of their detention or stay in open facilities unless they are granted international protection. Rejected asylum seekers will have the bill deducted from whatever money they deposited when detained. It is not clear at time of writing what measures authorities plan to take with respect to unsettled bills.
In light of these worrying developments, we, the undersigned organizations, urge the Commission to immediately:
- Call on the Hungarian Parliament to halt the adoption of the legal changes until the Commission and United Nations High Commissioner for Refugees is provided an opportunity to assess their compliance with Hungary’s EU and refugee law obligations and make recommendations to address any deficiencies;
- Push Hungarian authorities to provide access to the asylum procedure to those wanting to seek international protection in Hungary without further delays at the border and without being subjected to automatic blanket detention;
- Ensure that all protections granted to unaccompanied children apply to all such children under the age of 18 and are not limited to those under 14.
- Press Hungarian authorities to investigate credible allegations of violent pushbacks at its border with Serbia and hold those responsible to account.
We respectfully request the Commission to fulfil its role as the guardian of the treaties in securing the steps needed to bring Hungary’s asylum and migration laws into compliance with its obligations under EU law, including by accelerating the December 2015 infringement proceedings on its problematic asylum legislation. We stand ready to discuss these issues with you at any time.
Thank you for your attention to these pressing matters.
Benjamin Ward Marta Pardavi
Deputy Director Co-chair
Europe and Central Asia Division Hungarian Helsinki Committee
Human Rights Watch